Whose Truth: Objective and Subjective Perspectives on Truthfulness in Advocacy

Abstract

A lawyer confronts many features of the world that are given, inflexible, and must simply be dealt with; at the same time, she has latitude for creativity, for the exercise of skill and judgment toward the realization of the client's ends. This is true for lawyers acting in various capacities, including as counselors of clients and transactional planners, but is most clearly one of the structural features of the lawyer's role as an advocate for her client. Recent law graduates learning the craft of advocacy quickly come to understand that, while in law school it was the law that was open-textured, manipulable, and the wellspring of creative lawyering, in practice the facts do not come pre-packaged and accepted as true for the purposes of an appellate court's review, but are highly contingent and the product of the interaction between a lawyer and witnesses, documents, and other sources of information.